JUDGMENT
Koshy, J.
1. All these appeals arising out of the common judgment rendered by the learned single Judge in O.P. Nos. 15161, 16193, 18305, 18751 and 20433 of 1997. Writ Appeals, Nos. 526, 568, 574, 653 and 871 of 1998 are the writ appeals filed by the Slate Government as well as the Director of Medical Education jointly, challenging the judgment in all the five original petitions. The appellants in writ appeals Nos. 264, 293, 307, 312, 379 and 553 of 1998 were eventhough not originally parties to the writ petitions got themselves impleaded in the writ
petitions and the impugned judgment was passed after hearing them. Writ Appeals Nos. 234, 242, 325, 326, 398, 540 and 603 of 1998 are filed with leave by persons who were not parties to the original petitions. The leave to file appeal was granted to them as their rights are also affected.
2. Eventhough facts are same and appeals are filed challenging the same common judgment, for convenience we arc referring to exhibits in W.A. No. 234 of 1998 filed from O.P. No. 15161 of 1997. The original petitions were filed by M.B.B.S. Graduates who had written entrance examination conducted for selection to various Post-Graduate Degree and Diploma courses, held in June, 1997. In the results of the entrance examination they were ranked. Therefore, petitioners are candidates belonging to general merit quota. In the Prospectus, Clause VII deals with ‘reservation of seats among service candidates’. The eligibility for service quota are described in Clause VII (b). Clause VII deals with reservation of seats among service candidates for four categories. They are :
1. Lecturers
2. Assistant Surgeons — 3 categories under this are :
(a) Health Service quota
(b) Family Welfare quota
(c) Leprosy Service quota
3. Medical Officers in Municipal service.
4. Medical Officers in Insurance Medical Service.
It is also provided in Clause VII (e) that :
“When all the candidates in the published select and waitlist are considered and if there exist vacancies except that under Lecturer quota and under Health Service quota such vacant seats will be added to General Merit seat to be filled up by candidates under this category.
Seats which become vacant in the Lecturer quota will be transferred to Health Servicequota and vice versa. If there are no candidates from either quota the seats will be transferred to General Merit quota.”
This last clause dealing with transfer of Lecturer quota to Health Service quota and vice versa was not available in 1996 Prospectus. Thereafter, by Government Order dated 17-3-1997 (Ext. R3(b)) Government fixed priority in distribution of seats
to the service candidates. As per the above Government Order, only after selection by service candidates to the respective seats to their choice balance seats alone can be selected by merit candidates. The original petition was filed for quashing the prospectus to the extent to which it affects the petitioners and for the issuance of a writ of mandamus directing the respondents to maintain at least 50% of seats to the candidates under General Merit Quota and the candidates under the General Merit Quota be directed to be given priority in the allotment of colleges of their choice as had been followed till last years. During the arguments following points were pressed : (1) At least 50% of the seats should be earmarked for the General Merit Quota; (2) Priority should be given to the merit candidates in the allotment of colleges; and (3) vacancies in the Lecturer quota should not be transferred to Health Service quota and such seats which are not filled up due to absence of Lecturer candidates should go back to the general quota.
3. The learned single Judge in view of the decisions of the Supreme Court in Dr. Jagdish Saran v. Union of India, 1980 (2) SCC 768 : (AIR 1980 SC 820); Mohan Beer Singh Chawla v. Punjab University, JT 1996 (2) SCC 225 : (AIR 1997 SC 788); Indira Sawhney v. Union of India, AIR 1993 SC 477 : (l’993 Lab IC 129); Dr. Pradeep Jain v. Union of India. 1984 (3) SCC 654 : (AIR 1984 SC 1420); Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad (1986) 3 SCC 727 : (AIR 1986 SC 1877) and in M. R. Balaji v. The State of Mysore, AIR 1963 SC 649 held that it is not enough that considering the seats given to All India Quota there will be 50% available to the general merit candidates, but 50% seats of the total State quota should be given to the merit candidates. Later it was also noticed by the learned single Judge that since after admission of the writ petitions further general merit quota candidates were admitted, 50% seats were actually filled up by merit candidates. The learned Judge held as follows :
“……………The reservation for the year should
not exceed 50% in any event is the principle that is discernible from the decisions of the Supreme Court………. Similarly, the State is entitled to
apply the rule of reservation only to the seats it can fill up………… The contention that the seats
reserved for All India Quota should also be
pooled together for determining this aspect cannot be accepted since admission to the seats reserves for the All India Quota are filled by the Entrance Examination conducted on an All India basis as distinct from the Entrance Examination conducted by the State.”
These directions are not seriously challenged by any of the appellants before us. Therefore, we are not going into these aspects of the case further.
4. The learned single Judge accepted the contentions of the petitioners that it is wrong to give first preference to the service candidates in the matter of selection of courses and colleges. According to the learned Judge, first preference should be given to the meritorious candidates who were ranked in the entrance examination. It was also held that if seats in any of the reserved candidates become vacant it should go to the general merit candidates. Learned single Judge held as follows :
“The provision in the present prospectus of lapse of the seats left unfilled by Lecturers to the Assistant Surgeons is struck down as irrational, arbitrary, unwarranted and unconstitutional. The seats left vacant from the Lecturer quota will go to the general merit pool and not to the Health Service quota as provided.”
After holding so it was also directed that admissions now made on the basis of the Government Order in the present prospectus will stand nullified and respondents in the original petitions were directed to re-arrange the admissions on the basis of the directions issued.
5. One of the main grounds urged by the appellants is that all the affected parties were not heard by the learned single Judge while issuing the directions and the judgment passed without hearing all the necessary parties should be set aside and the petition ought to have been dismissed for non-jointer of parties. In Ishwar Singh Ajay Kumar v. Kuldip Singh (1995 Supp (1) SCC 179) the Supreme Court held that writ petition impugning selection and appointments, without impleading all selected candidates, is not maintainable especially when the appointments were already made. Similar view was taken by the Supreme Court in Chandigarh Administration v. Manpreet Singh, AIR 1992 SC 435 : (1992 AIR SCW 28). The appellants rely upon the above decisions.
6. The respondents (petitioners in the original petition) submitted that on 27-10-1997 an interim order was passed stating that admissions will be subject to the result of the original petition. It is further submitted that in all admission cards issued it was specifically stated that admissions or inverviews conducted are only subject to the result of the original petition. Therefore, it is submitted that any prudent candidate should have made necessary enquiries and impleaded in the case. The respondents relied on the decision in Navjyoti Co-op. Group Housing Society v. Union of India, (1992) 4 SCC 477 : (1992 AIR SCW 3075). In the above case petitioners challenged validity of an order containing new guidelines of the Government regarding determination of seniority among group housing societies for allotment of ranks and the above guidelines were struck out by the High Court. It was argued in the Supreme Court that societies likely to be affected if the new guidelines are struck out were not impleaded. The Supreme Court held that such allotments were made only during the pendency of the writ petition on condition that allotment would abide by the decision in the pending writ petition. In such circumstances it was held that non-impleading of the societies will not be fatal to the petition. Here also interview cards/admission cards were issued subjects to the result of the writ petition and interviews, admissions and allocation of seats were made only during the pendency of the writ petitions. Even selection of service candidates were made only after filing of the writ petitions. Therefore, it is contended by the petitioners in the original petition that non-impleadment is not fatal to their writ petition.
7. On going through the facts of the case it is seen that Kerala Government Medical Officers Association got themselves impleaded in the writ petition. It is stated in the affidavit filed by the Secretary of the Association that :
“The additional 4th respondent is the only recognised Association of the Medical Officers in Kerala Health Services Department and almost all Medical Officers in the Department are its members. Members of the Association have applied for Post Graduate Course and selected for Post-Graduate Courses under various quota as per the Prospectus “97.”
None of the appellants have stated in the appeal memorandum that they are not members of the
above Association. It is a recognised Association representing all the members of the Medical Officers in Kerala Health Services Department. None of the appellants have taken a contention that they are not members of the Association. Therefore, their contentions were elaborately heard through the Association. In fact, W.A. No. 312 of 1998 is filed against the impugned judgment by the Kerala Government Medical Officers Association. Several in-service candidates themselves got impleaded in the original petitions and the original petitions were disposed of after fulfledged hearing of the parties. Since the Association was heard and some of the Doctors were also heard, we are of the opinion that the original petitions should not have been dismissed for non-joinder of parties. The appellants were also heard through the Association and all the appellants were got themselves impleaded in the original petition and all the matters were considered on merit. We have also considered them on merit and therefore, the impugned judgment cannot be set aside on the ground that all the selected candidates were not made parties to the writ petitions.
8. The second ground urged by the appellants is that having participated in the entrance examination and admission procedure in accordance with the prospectus, petitioners cannot turn round and say that prospectus is incorrect and unconstitutional. In support of their contention the appellants relied on the decision of the Supreme Court in Union of India v. N. Chandrasekharan (1998) 3 SCC 694 : (AIR 1998 SC 795) wherein Supreme Court held that when selection procedure was made known to the candidates before selection, an unsuccessful candidate, on the facts of that case, is not entitled to challenge it afterwards. Supreme Court held as follows (at page 798 of AIR) :
“It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later that when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the
assessment on confidential report.”
The above observation was made by the Supreme Court after holding that on merit also there is no case. The Supreme Court in University of Cochin v. N. S. Kunjukunjamma, JT 1997 (5) SCC 379 : (AIR 1997 SC 2083) also expressed similar view that after participating in a selection process, the selection process itself cannot be challenged. It is true that petitioners wrote the examination in accordance with the prospectus. But there is no provision in the prospectus regarding giving first preference to the service candidates in selection of colleges or courses of studies. That was introduced only by Ext. R3(b) Government Order, dated 17-3-1997. It is not made clear that part of the prospectus was made known to the applicants till the date of interview. The order was produced in the counter-affidavit filed by the Government. Therefore, this part of the argument is not applicable in the matter of preference. In any event, General Merit candidates, open merit candidates and Scheduled Caste and Scheduled Tribe candidates have to write the entrance examination. Only the inservice candidates were not required to write the entrance examination. Therefore, by writing the entrance examination there cannot be any acquiescence to the other provisions in the prospectus. Dates are also relevant. Prospectus is dated 14-3-1997. It was published only on 9-4-1997, after getting approval as per Ext. R3(a). The last date for sending application was on 31-5-1997. The students were very much concerned about the entrance examination and were studying for the entrance examination. The entrance examination was on 29-6-1997 and the rank list was published in the newspapers on 24-7-1997. Before interview cards were issued O.P. No. 15161 of 1997 was filed on 27-8-1997. In fact, only when the rank list was published petitioners got a right to challenge the prospectus. After filing of the original petition, interview cards were issued. Before the interview cards were issued, before selection to the courses and colleges were made and before final select list is prepared, they approached this Court. Interview started from 15-10-1997 onwards and admission cards (Ext. R16(a)) were issued on 17-10-1997 onwards. In the admission cards it was specifically stated that admissions will be provisional and subject to the result of the original petition. From the facts of this case it is clear that
the writ petition is not belated and merely because they wrote the entrance examination their rights arc not barred. Even if the provision regarding selection of subjects or provision regarding unfilled vacancies of Lecturers should go to the service candidates is struck down they were bound to write the examination for being considered. Therefore without writing the examination if anybody approaches this Court there is a chance of getting their writ petition dismissed for want of locus standi.
8.1 With regard to the direction of the learned single Judge that unfilled vacancies in the Lecturer quota should be allocated to the General Merit Quota, the contention of the appellants is that service candidates are given a particular number of scats. Lecturers are only a sub category of service candidates and there is nothing wrong in giving unfilled vacancies to the other service candidates. In reply, the contention of the petitioners is that admissions to the Post Graduate Courses should be given only on merit. But considering various aspects like backward nature or upliftment of backward communities or for giving encouragement to service candidates forgetting Degrees even if reservation can be made. Such reservation is an encroachment of the right of the merit candidates. Therefore, if any reserved category is unfilled it should go to the General Merit Quota. It is further contended that college lecturers arc given specific reservation for getting qualified teachers in the Government Colleges. If they arc not available, purpose of the above reservation will not be served by giving it to the Health Service Quota. The purpose of reservation to Lecturer Quota. Health Service Quota etc. are different. If number of seats arc vacant applying the general principle it should go to the general reservation. Learned single Judge held as follows :
“Clearly, the general rule regarding reservation is that if a seat reserved for a particular group or quota is not filled for the reason that no one from that group or quota is available for filling the seat, the same should revert to the general merit pool. Here what has happened is that separate reservation has been made for the Lecturer quota and the service quota. The further provision in the prospectus is that seats which became vacant in the Lecturer quota will be transferred to Health Service Quota and vice versa and only if there are
no candidates from either quota, the seats will be transferred to general merit quota. Why this principle was adopted has not been satisfactory explained cither by the first respondent or by the third respondent.”
It is clear that Government did not even apply its mind to find out how many Lecturers are appointed who did not possess a Post-Graduate Degree while making reservation to Lecturers. In 1996 there is no such provision that vacant seats in the Lecturer quota will be filled by Health Service Quota and this was introduced to unduly benefit a section of candidates who did not even have the need to write the entrance examination, which is a general requirement for admission. When seats are available it should go to the general candidates. In this connection, we refer to the decision of a Division Bench of this Court in Dr. P. M. Mansoor v. State of Kerala, 1986 Ker LJ 637. In the above case 30% seats were reserved for Tutors in Medical Colleges. The Division Bench held that while giving such interchange-ability Government have not applied their mind. The Division Bench held as follows ;
“It is in this context that we have to consider the validity of the provisions contained in clause (f) of the prospectus under which the unfilled scats reserved for Tutors could be allotted to the Assistant Surgeons and vice versa. The effect of this provision for the year is that the six seats which remained unfilled in the Tutors quota for want of sufficient number of candidates in that class will have to go to the Assistant Surgeons increasing thus the reservation of 10% allowed to them. . . . .When quota has been reserved for a particular class, which itself is a fair dilution of the quality of standards expected at the postgraduate level, there is no reason why that percentage should be increased in any contingency. There cannot be a direct or indirect increase of the percentage of reservation when the same is already fixed for any class. When merit is the test to select the best, any seat that is not available to a reserved class should in the normal course, naturally go to the “merit” candidates, the seats being added to the State merit. This classification is therefore plainly destructive of the object sought to be achieved regarding admission to the postgraduate level and cannot be sustained. Clause (f) of Ex. P-1 is therefore struck down as opposed to Article 14.”
The present contention raised by the Government in the counter-affidavit was raised there also that Lecturers are also sub-category of service candidates and therefore, unfilled candidates in the Tutor category can be filled up by another group in the same category. This contention is repelled by the Division Bench in paragraph 25 of the judgment which is as follows :
“The Senior Government Pleader contended that Assistant Surgeons and Tutors both belonged to the same category of inservice candidates and thus there is nothing wrong in the seats allotted to one group in the same category being given to another group also of the same category. We are unable to appreciate this stand for the simple reason that the Government themselves have made a classification of in-service candidates. The reservation was made for two categories and they did not belong to the same class as contended by the Government Pleader. One category comprises the staff engaged mainly in rendering aid to the poor sections of the community while the other is comprised of staff engaged in the medical college imparting education to medical students. One category belongs to the Health Services Department and the other to a different department under the Government.”
The Supreme Court also dismissed S.L.P. Nos. 9563 and 9564 of 1986 filed against the above decision of the Division Bench. In view of the Division Bench decision the learned single Judge is right in setting aside the clause regarding inter-changeability of reserved seats for Tutors to Assistant Surgeons. We are of the opinion that if any seats reserved for Tutors category are unfilled it should go to the General Merit Quota and candidates should be filled up only from the General Merit Quota. It is also pointed out that after the above Division Bench decision such clause was not made in the prospectus and the unfilled posts were given to the General Merit Quota. In the year 1995 service candidates made an attempt to re-introduce the same by filing O.P. No. 13020 of 1995 seeking to compel the Government to give unfilled Tutors seats to the Assistant Surgeons and the original petition was dismissed on merit after detailed consideration. The above decision was confirmed in W.A. No. 1369 of 1996. We are at a loss to understand why such clause was again introduced in 1997, ignoring observations in the decision of this Court reported in Mansoor’s case
(supra). Therefore, learned single Judge was right in the decision in this regard.
8.2 In this connection we also refer to the decision of the Supreme Court in State of Orissa v. R. Asim Kumar Mohanty, (AIR 1989 SC 1801). In the above case, Prospectus show that 69 out of 113 seats were intended to be filled up by inservice doctors and it was held that when reservation was made for any of the specified categories in respect of 44 out of the total 113 seats did not work out and any seat remained unfilled, it should be treated as a general seat and State Government was not justified in allotting eight seats to the inservice doctors. Supreme Court in that case has granted cost in the appeal also.
9. It is contended finally that the direction of the learned single Judge that first preference regarding selection of subjects and colleges should be given to the merit candidates is illegal. If first preference is given to the service candidates and only after their selection, the general candidates can have choice as per Ext. R3(b) Government Order, even the first rank holder in the merit quota will not be able to get the seat of his choice. According to the learned single Judge, the preference given in Government Order, dated 17-3-1997 is irrational and arbitrary. The inservice candidates’ merit was not tested by conducting an entrance examination. Since giving first preference to inservice candidates was not mentioned in the Prospectus, according to the learned Judge, the General Merit candidates are entitled to get first preference subject to the seals reserved for SC/ST candidates as per their ranks and choice of course. We cannot also agree to the proposition that first preference should be given to general candidates only and then left overs only to the service candidates as complete exclusion of one category in preference to another category is arbitrary. (Mode of selection and giving preference to SC/ST candidates are not in question and that is not disturbed). But we agree with the learned single Judge that without giving specific provision in the Prospectus, the Government Order directing to give first preference to the inservice candidates is clearly arbitrary and unreasonable. No valid grounds are stated in the affidavit to give such preference ignoring the general merit candidates totally. But a policy has to be framed by the Government so as to give rational basis in selection of choice on the basis of ranks and giving
equal and fair opportunity to all categories including service candidates and general merit candidates. This is a matter to be considered by the Government in future admissions.
10. Now the learned single Judge has directed the Government to reschedule the admissions given as per 1997 Prospectus. It is submitted by the appellants that in any view of the matter an equitable consideration should be made. Almost one Semester is going to over for many of the candidates as admission started from 17-10-1997. About nine months they have studied. The Degree course is only for two years and Diploma course is only for one year. At this distance of time changing the subject will be difficult for the students. This is opposed by the petitioners in the original petition as admissions were given subject to the result of the original petition and also pointed out the decision of the Supreme Court in Chander Chinar Bada Akhara Udasin Society v. State of J. & K., AIR 1997 SC 399 : (1996 AIR SCW 3778). But facts of this case are different. Original admissions were set aside and the learned Judge of the High Court in the above case gave directions regarding method of appointment. On the basis of the above methods advertisement was published on 4-12-1995 inviting applications and 11-12-1995 was fixed as the last date for receipt of the applications. Interviews were held between 15-12-1995 and 17-12-1995 and candidates so selected were admitted between 20-12-1995 to 26-12-1995 and teaching commenced from 26-12-1995. On 27-12-1995 itself Division Bench stayed the matter. Supreme Court upheld the decision of the Division Bench. As the teaching commenced from 26-12-1995 and the Division Bench stayed the matter on 27-12-1995 itself within one day, Supreme Court held that the students in that case are not entitled to get equitable relief. The facts arc different here. After admissions were made much time has elapsed. In this connection we refer to the decision of the Supreme Court in Chandigarh Administration v. Manpreetsingh (1992) I SCC 380 ; (AIR 1992 SC 435). In the above case considering the fact that students were got admitted in the educational institutions and studying, the admissions were not interfered with as it would result in grave and irreperable prejudice. In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 also method of selection was held to be unreasonable and
constitutionally invalid. The Supreme Court refused to exercise us discretion in setting aside the selections made for the academic year as it would cause immense hardship to the students. Supreme Court also noted that in view of the delay it would not have been possible to restore them to the position as if they were admitted for the academic year which has run out long since.
11. In Dr. Dinesh Kumar v. Motilul Nehru Medical College, AIR 1985 SC 1059 also Supreme Court did not disturb the admissions already made. The Supreme Court observed as follows at page 1069 :
“But we are not inclined to strike down the admissions which have already been made. There are two reasons why we do not wish to disturb these admissions. ………. Secondly, the admissions have been made as far back as January, 1985 pursuant to an order of the High Court and the students who have been admitted have been prosecuting their studies since the last about three months and it would cause them immense hardship if their admissions were none (now?) to be disturbed. We do not therefore propose to strike down the admissions already made to the post graduate courses for the academic year 1985-86. But at the same time we must not allow any injustice to be perpetrated on the petitioners.”
12. In view of the above circumstances, eventhough on merit we agree with the learned single Judge in quashing interchangeability of Tutors with the inservice candidates and directing that unfilled seats should go to general candidates and also agree with the finding that there is no rationale in giving first preference to inservice candidates in selection of subject and colleges and after finishing their choice leftovers only be given to the general merit quota as it is unreasonable, we are not agreeing with the reverse proposition showing undue exclusive preference to general merit candidates on the reasons stated above. Considering the fact that the Government has yet to frame a policy so that all different categories including general merit candidates and inservice candidates are able to get equal opportunity on a rationale and fair basis in the matter of selection of subjects and colleges, at its distance of time to avoid hardship to students, we are not disturbing the present status quo of all the admitted candidates. But if any further seats are vacant in the Lecturers Quota and Government is
intending to fill up that seats, that should be given to general merit candidates. Observations made in this judgment as well as in the Division Bench Judgment in Dr. P.M. Mansoor’s case (1986 Ker LJ 6 37) should be followed by the Government in future years.
With the above observations all the writ appeals are disposed of.